New York & New Jersey Immigration Lawyer Bloghttp://www.newjerseyimmigrationlawyer-blog.com
Published by New Jersey Immigration Attorneys — Samuel C Berger, PCMon, 28 Nov 2016 23:26:23 +0000en-UShourly194860944NewYorkNewJerseyImmigrationLawyerBlogComhttps://feedburner.google.comNew Jersey Cities Continue to Resist Federal Demands to Assist in Immigration Enforcementhttp://www.newjerseyimmigrationlawyer-blog.com/2016/11/new-jersey-cities-continue-resist-federal-demands-assist-immigration-enforcement.html
Thu, 24 Nov 2016 17:24:49 +0000http://www.newjerseyimmigrationlawyer-blog.com/?p=525The recent presidential election has brought a massive amount of uncertainty for immigrants, prospective immigrants, their employers, and their families. The uncertainty ranges from the new president-elect’s rhetoric regarding deportations to the future of various permanent and temporary visa programs. The extent to which local governments participate in immigration enforcement potentially affects all immigrants. The […]

]]>The recent presidential election has brought a massive amount of uncertainty for immigrants, prospective immigrants, their employers, and their families. The uncertainty ranges from the new president-elect’s rhetoric regarding deportations to the future of various permanent and temporary visa programs. The extent to which local governments participate in immigration enforcement potentially affects all immigrants. The U.S. Constitution gives the federal government exclusive authority over immigration, but enforcement efforts have expanded to include local law enforcement. Many local officials have pushed back in recent years, stating that they will not actively participate in federal immigration enforcement. Multiple court decisions support this position, but it remains controversial. Cities that have taken this position are often known as “sanctuary cities,” a term that can be both descriptive and pejorative, depending on the circumstances.

Part of the problem with addressing this issue is the lack of a clear definition of a “sanctuary city.” It does not mean that anyone in such a city is “safe” from immigration enforcement. At a minimum, it means that local officials will not cooperate with simple requests from a federal agency like Immigration and Customs Enforcement (ICE). Federal immigration officials routinely review county jail rosters to check for possible immigration violations, and they place “detainers” on people they believe may be undocumented or otherwise in violation of federal immigration laws.

Congress has the sole authority “to establish an uniform Rule of Naturalization.” U.S. Const. art. I, § 8, cl. 4. This means that the federal government has exclusive jurisdiction over immigration questions. Immigration proceedings are federal civil matters. Local courts therefore have no jurisdiction to adjudicate such questions with regard to inmates in their custody. A detainer amounts to a request that local law enforcement continue to hold a person beyond the time they would otherwise be released, until ICE can take custody of them. Many local officials are saying that they will not comply with such requests unless they are accompanied by additional legal authority, such as a warrant or court order.

Several cities and counties in New Jersey have publicly stated policies that fit the concept of “sanctuary cities.” Camden County, for example, does not follow ICE detainer requests unless they are accompanied by a court order or warrant. Jersey City enacted an ordinance in 1996 that barred the use of city resources “to identify, persecute, apprehend or deport” undocumented immigrants. The mayors of Newark, New York City, and other cities have taken similar positions.

Immigration lawyer Samuel C. Berger advocates for the rights and interests of immigrants and prospective immigrants, their family members, and their employers in Northern New Jersey and New York City. Contact us today online, at (201) 587-1500, or at (212) 380-8117 to schedule a confidential consultation with a member of our experienced and knowledgeable team.

]]>525New York City Lawsuit Challenges Nationwide Application of DAPA Injunctionhttp://www.newjerseyimmigrationlawyer-blog.com/2016/11/new-york-city-lawsuit-challenges-nationwide-application-dapa-injunction.html
Thu, 10 Nov 2016 17:28:49 +0000http://www.newjerseyimmigrationlawyer-blog.com/?p=515The White House’s 2014 executive actions on immigration have been cause for controversy from the moment President Obama announced them almost two years ago. The Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program prompted a lawsuit by 26 state governments. A U.S. district judge in Texas issued an injunction against the program, […]

]]>The White House’s 2014 executive actions on immigration have been cause for controversy from the moment President Obama announced them almost two years ago. The Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program prompted a lawsuit by 26 state governments. A U.S. district judge in Texas issued an injunction against the program, and the Department of Homeland Security (DHS) halted the implementation of DAPA nationwide in response. A new lawsuit filed in New York, however, challenges this action by DHS. Batalla Vidal v. Baran et al., No. 1:16-cv-04756, am. complaint (E.D.N.Y., Sep. 29, 2016). The plaintiff claims that the Texas court that granted the injunction lacked the authority to bind the DHS in New York.

The White House announced DAPA on November 20, 2014. The program would be similar to the existing Deferred Action for Childhood Arrivals (DACA) program, and it would cover qualifying undocumented parents of U.S. citizens and lawful permanent residents. The program represents an agreement by the federal government not to pursue (to “defer”) immigration enforcement action against a person for a defined period of time. To be eligible, an individual must show that they are a parent of a citizen or permanent resident, that they have been continuously present in the U.S. since 2010, and that they are not an “enforcement priority” under the administration’s immigration enforcement criteria. DAPA recipients may also be eligible for work authorization.

The Texas court granted the temporary injunction in February 2015. Texas, et al., v. United States, 86 F.Supp.3d 591 (S.D. Tex. 2015). The injunction covered DAPA and expansions to DACA included in the 2014 executive actions, but it did not affect the existing DACA program. The Fifth Circuit denied a request to stay the injunction in May 2015, 787 F.3d 733 (5th Cir. 2015), and affirmed it that November, 809 F.3d 134 (5th Cir. 2015). When the case went to the Supreme Court, the death of Justice Antonin Scalia meant that only eight justices were available to hear the case, and they split 4-4. 579 U.S. ___ (2016). The Fifth Circuit’s ruling was therefore allowed to stand, but with no adjudication on a national level.

DHS took the position that the Texas court’s injunction halted DAPA and the expanded DACA program everywhere in the country, rather than just Texas. The plaintiff states in his complaint that DHS granted his DACA application in February 2015 but revoked it that May, “stating as the sole grounds for their action the issuance of a preliminary injunction in Texas v. United States.” Batalla Vidal, am. complaint at 2. He alleges that this action violated the Administrative Procedure Act, 5 U.S.C. §§ 706(2)(A), (D), since the Texas court lacked jurisdiction over New York.

Family immigration lawyer Samuel C. Berger represents immigrants in the New York City and Northern New Jersey areas, prospective immigrants who want to come to this area, and employers and family members who want to petition for visas on immigrants’ behalf. Contact us online, at (201) 587-1500, or at (212) 380-8117 today to schedule a confidential consultation with a member of our experienced and skilled team.

]]>515Employer Requests Immigration Status of Employees in Ongoing Disputehttp://www.newjerseyimmigrationlawyer-blog.com/2016/10/employer-requests-immigration-status-employees-ongoing-dispute.html
Thu, 27 Oct 2016 14:20:44 +0000http://www.newjerseyimmigrationlawyer-blog.com/?p=508Immigration law is deeply intertwined with employment in the United States, and the extent to which specific employment statutes apply to various immigrant statuses is under near-constant review by the courts. In the midst of this complex system, an employer involved in a dispute with the Equal Employment Opportunity Commission (EEOC) has made a rather […]

]]>Immigration law is deeply intertwined with employment in the United States, and the extent to which specific employment statutes apply to various immigrant statuses is under near-constant review by the courts. In the midst of this complex system, an employer involved in a dispute with the Equal Employment Opportunity Commission (EEOC) has made a rather bold accusation against some of its employees. It is claiming that the employees who complained to the EEOC are falsely claiming harassment in order to qualify for U visas, which are available to certain “victim[s] of criminal activity.” 8 U.S.C. § 1101(a)(15)(U). A recent federal appellate ruling essentially allows the employer to obtain information on the claimants’ immigration status. Cazorla, et al. v. Koch Foods of Miss., LLC, No. 15-60562, slip op. (5th Cir., Sep. 27, 2016).

Laws at the federal, state, and local levels protect employees from workplace discrimination on the basis of categories like race, sex, religion, color, and national origin. Title VII of the Civil Rights Act of 1964 protects these categories, and laws in many jurisdictions offer even broader protection. The EEOC receives complaints from employees, former employees, and job applicants about alleged unlawful conduct. After investigating the claims, the EEOC may pursue a civil enforcement action on behalf of the complainants, or it may authorize them to file suit. Title VII and most other anti-discrimination statutes do not limit their coverage based on immigration status, although the extent of the protection they offer to undocumented immigrants remains controversial.

The U visa is available to victims of certain crimes involving violence, exploitation, or fraud. 8 U.S.C. § 1101(a)(15)(U)(iii), 8 C.F.R. § 214.14(a)(9). In order to qualify, the person must have information related to the crime and must have “been helpful” to government authorities investigating or prosecuting the crime. 8 U.S.C. § 1101(a)(15)(U)(i). Only 10,000 U visas are available in each fiscal year. 8 U.S.C. § 1184(p)(2). U visas are valid for four years and may provide an opportunity to apply for adjustment of status to permanent residence.

The EEOC filed suit against the defendant in Cazorla on behalf of employees at a poultry processing plant, alleging sexual harassment and other forms of abuse under Title VII. Most of the complainants are Hispanic, many do not speak English, and some are reportedly undocumented. The defendant served discovery requests seeking information about individual complainants’ immigration status and history. The company is alleging that the complainants “made up their accusations in hopes of securing U visas,” and its request for the complainants’ immigration information is an “attempt to obtain concrete evidence of this malfeasance.” Cazorla, slip op. at 3.

The trial court allowed discovery to proceed with regard to information specifically related to any complainant’s effort to obtain a U visa, although it set limits on the use of that information. It denied the EEOC’s request to keep individual visa applicants anonymous, which formed a major part of the EEOC’s appeal. The Fifth Circuit vacated the trial court’s order but ruled that the discovery of U visa information may proceed with safeguards to keep visa applicants anonymous for the time being.

Visa lawyer Samuel C. Berger represents employers in New York City and Northern New Jersey who want to petition on an employee’s behalf for an immigrant or nonimmigrant employment-based visa. Contact us online, at (201) 587-1500, or at (212) 380-8117 today to schedule a confidential consultation to see how our experienced and skilled team can help you.

]]>508Fashion Model Visas Gain Attention Due to Election Newshttp://www.newjerseyimmigrationlawyer-blog.com/2016/10/fashion-model-visas-gain-attention-due-election-news.html
Thu, 13 Oct 2016 16:02:31 +0000http://www.newjerseyimmigrationlawyer-blog.com/?p=501The H-1B visa allows people in “specialty occupations” to live and work in the United States temporarily. A lesser-known aspect of the program also allows fashion models to come to the U.S. to work. Federal law limits the annual number of new H-1B visas that the government can issue, meaning that many individuals seeking an […]

]]>The H-1B visa allows people in “specialty occupations” to live and work in the United States temporarily. A lesser-known aspect of the program also allows fashion models to come to the U.S. to work. Federal law limits the annual number of new H-1B visas that the government can issue, meaning that many individuals seeking an H-1B visa for a particular fiscal year will be disappointed. Several other types of visas are available for fashion models who want to come to the U.S. for work, provided they meet the qualifications. Fashion model visas have been the subject of media attention in recent months, largely due to allegations arising from the presidential election. Specifically, several models formerly employed by one candidate claim that they were present in the U.S. with tourist visas, which would not have allowed them to work as models.

Federal immigration law provides a specific type of visa for workers in “specialty occupations” or “fashion models.” 8 U.S.C. § 1101(a)(15)(H)(i)(b). A specialty occupation job that qualifies for an H-1B visa must require an advanced degree and the specialized knowledge or skills that come with such a degree in order to perform the work. The total number of new H-1B visas available each fiscal year is capped at 65,000. Id. at § 1184(g)(1)(A). Immigration officials receive a substantially higher number of H-1B petitions every year.

The H-1B fashion model visa, also known as the H-1B3 visa, is available to individuals of “distinguished merit and ability in the field of fashion modeling,” who want to come to the U.S. “to perform services which require a fashion model of prominence.” 8 C.F.R. § 214.2(h)(4)(i)(C). Federal immigration regulations define “prominence” in fashion modeling in a rather circular manner, as being “renowned, leading, or well-known in the field of fashion modeling.” Id. at § 214.2(h)(4)(ii). A model or their employer may establish their “prominence” in the field with documentation of their past work and with affidavits from people with knowledge of the industry. Id. at § 214.2(h)(4)(vii). They must also provide a labor certification from the U.S. Department of Labor. 8 U.S.C. § 1182(n)(1).

The O-1 visa is another possible option for fashion models, although it arguably sets an even higher bar than the H-1B3 visa. It is available to people with “extraordinary ability in…business…which has been demonstrated by sustained national or international acclaim,” or a “demonstrated record of extraordinary achievement” in movies or television. 8 U.S.C. § 1101(a)(15)(O)(i). The P-3 visa is available to “an artist or entertainer” coming to the U.S. for a “culturally unique” performance or program. Id. at § 1101(a)(15)(P)(iii). While these do not seem to relate directly to fashion modeling, they could apply to some individual models.

Employment visa attorney Samuel C. Berger represents immigrants in New York City and Northern New Jersey, as well as prospective immigrants who want to move to this area, businesses that want to petition for their employees, and families seeking visas for their relatives. To schedule a confidential consultation to see how we can help you, contact us today online, at (201) 587-1500, or at (212) 380-8117.

]]>An administrative law judge (ALJ) at the U.S. Department of Labor (DOL) recently reversed a ruling finding an employer liable for wage violations affecting workers with H-1B visas. Administrator v. Volt Management Corp., No. 2012-LCA-00044, order (DOL, Jun. 16, 2016). The DOL’s Wage and Hour Division (WHD) had initiated an investigation of the respondent after receiving a grievance from an H-1B worker. The investigation grew to include 80 H-1B employees and resulted in a finding that the respondent had underpaid them by hundreds of thousands of dollars. The ALJ found that the WHD exceeded its authority by expanding its investigation. It reversed the entire ruling and penalty, except for the award of damages to the individual complainant.

A limited number of H-1B temporary worker visas are available each fiscal year for workers in “specialty occupations,” which typically require an advanced degree or specialized training. 8 U.S.C. § 1101(a)(15)(H)(i)(b). In order to obtain an H-1B visa for a prospective employee, the employer must petition U.S. Citizenship and Immigration Services (USCIS) and file a labor certification application (LCA) with the DOL. The LCA must attest that the worker will receive comparable wages to others in similar positions and that hiring a nonimmigrant worker will not adversely affect working conditions for U.S. citizens and lawful permanent residents. Id. at § 1182(n)(1). If the DOL approves the LCA, it issues a labor certification to the employer, which forms part of the petition to USCIS.

Federal immigration law gives the DOL authority to investigate employers for violations of the conditions of their labor certifications under certain circumstances, including a grievance filed by an H-1B visa holder. Id. at § 1182(n)(2)(A). The DOL can initiate a random investigation against an employer within five years of the date the employer is found to have violated certain terms of its labor certification. Id. at § 1182(n)(2)(F). It can also initiate an investigation of an employer with H-1B workers if it “has reasonable cause to believe that” the employer has violated H-1B wage regulations. Id. at § 1182 (n)(2)(G)(i).

The complainant in Volt filed a grievance with the WHD in September 2009, alleging that the respondent, his employer, had failed to pay him from approximately June 30, 2009 until August 18, 2009, the date he was terminated. The WHD initiated an investigation, which “ballooned to encompass far more than what [the complainant] alleged.” Volt, order at 2. The WHD ultimately determined that the respondent owed $330,000 in back wages to 80 employees.

The ALJ reversed almost all of the WHD’s findings, noting that the statute “ limit[s] the circumstances in which the [DOL] may expand an investigation beyond a grievance an individual H-1B worker presents.” Id. The WHD was authorized to investigate the complainant’s specific grievance under § 1182(n)(2)(A), but the ALJ ruled that none of the factors identified in the statute that would allow the WHD to expand its investigation were present. It allowed the WHD’s findings for the complainant to stand, but it reversed everything else.

Immigration attorney Samuel C. Berger represents immigrants and prospective immigrants, family members of immigrants, and employers of immigrants in New York City and Northern New Jersey. Contact us online, at (201) 587-1500, or at (212) 380-8117 today to schedule a confidential consultation with an experienced and knowledgeable immigrants’ rights advocate.

]]>492Federal Government Expands Waiver Program for Certain People Deemed Unlawfully Present in the U.S.http://www.newjerseyimmigrationlawyer-blog.com/2016/09/federal-government-expands-waiver-program-certain-people-deemed-unlawfully-present-u-s.html
Thu, 08 Sep 2016 16:47:36 +0000http://www.newjerseyimmigrationlawyer-blog.com/?p=485Undocumented immigrants who meet certain criteria can apply for waivers allowing them to proceed with an immigrant visa petition. One type of waiver is known as a “provisional unlawful presence waiver” (PUPW). Individuals with six months to one year of accrued unlawful presence in the U.S. who voluntarily depart the U.S. are deemed inadmissible for […]

]]>Undocumented immigrants who meet certain criteria can apply for waivers allowing them to proceed with an immigrant visa petition. One type of waiver is known as a “provisional unlawful presence waiver” (PUPW). Individuals with six months to one year of accrued unlawful presence in the U.S. who voluntarily depart the U.S. are deemed inadmissible for a period of three years. A PUPW allows a person who meets these criteria to request a waiver of the three-year inadmissibility period, provided they leave the U.S. and apply to reenter at a U.S. consulate abroad. A new rule that took effect at the end of August 2016 streamlines the application process and expands eligibility for PUPWs. 81 Fed. Reg. 50243 (Jul. 29, 2016). Previously, PUPWs were only available to people seeking family-based immigrant visas. The new rule makes them available for employment-based and other visa petitions.

To qualify for a PUPW, an individual must be inadmissible under § 212(a)(9)(B)(i)(I) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(9)(B)(i)(I). This provision applies to people (1) who have been unlawfully present in the U.S. for more than 180 days but less than one year, (2) who voluntarily depart the country, either on their own or with the government’s permission under 8 U.S.C. § 1229c, (3) prior to the beginning of removal proceedings under 8 U.S.C. §§ 1225(b)(1) or 1229a.

People covered by this provision of the INA are ineligible for readmission for three years, beginning on the date they leave or are removed from the U.S. The PUPW waives the six- to 12-month period of unlawful presence, making them eligible for an immigrant visa without the three-year bar.

DHS first created the PUPW in 2013. 78 Fed. Reg. 535 (Jan. 3, 2013), 8 C.F.R. § 212.7(e). It significantly reduced the amount of time people had to wait on a waiver decision, as well as the amount of time they were separated from their families in the U.S. Prior to the recent rule changes, however, an applicant had to be “the beneficiary of an approved immediate relative petition” to qualify and could not have been in pending removal proceedings. Id. at §§ 212.7(e)(3)(iv), (4)(5).

The new rule allows people involved in removal proceedings to apply for a PUPW, and it expands eligibility beyond immediate relatives “to include all beneficiaries of approved immigrant visa petitions” who meet all the other eligibility requirements. 81 Fed. Reg. at 50249. This includes all other family-based immigrant visa categories, employment-based immigrant visas, and diversity lottery visas.

Employment visa attorney Samuel C. Berger represents people who plan on immigrating to the New York City and Northern New Jersey region, or who have already made this area their home. We help businesses and families petition for visas to bring employees or loved ones to the U.S. To schedule a confidential consultation with a member of our team, contact us today online, at (201) 587-1500, or at (212) 380-8117.

]]>485Administrative Appeals Board Overturns Denial of Labor Certificationhttp://www.newjerseyimmigrationlawyer-blog.com/2016/08/administrative-appeals-board-overturns-denial-labor-certification.html
Thu, 25 Aug 2016 16:27:59 +0000http://www.newjerseyimmigrationlawyer-blog.com/?p=477Before an employer in the U.S. can hire a worker from abroad for a job here, the employer must petition for a visa for the worker. This requires a labor certification from the Department of Labor (DOL). The employer must establish that it is in compliance with U.S. labor law regarding the employment of someone […]

]]>Before an employer in the U.S. can hire a worker from abroad for a job here, the employer must petition for a visa for the worker. This requires a labor certification from the Department of Labor (DOL). The employer must establish that it is in compliance with U.S. labor law regarding the employment of someone from outside the country. In a recent case, a DOL certifying officer (CO) denied a request for certification on the basis that the job posting disadvantaged U.S. workers. The DOL’s Board of Alien Labor Certification Appeals (BALCA) reversed the CO’s decision. In re Cosmos Foundation, Inc., No. 2012-PER-01637, dec. order (BALCA, Aug. 4, 2016).

Permanent labor certifications are required for employment-based immigrant visas, through which an immigrant employee can come to the U.S. with the intention of staying permanently. The main purpose of a labor certification is to demonstrate that no qualified U.S. workers are available to fill a position, and hiring someone from abroad will not negatively affect wages for workers here. A similar process, known as the labor condition application, applies to petitions for temporary visas, such as the H-1B visa program. The Program Electronic Review Management (PERM) system, an electronic application system established by the DOL in 2005, is supposed to enable the DOL to process an application in 60 days or fewer.

DOL regulations impose numerous requirements for labor certifications. The Cosmos case involved an alleged defect in the way the employer advertised the position. If an employer places a job advertisement in a newspaper or professional journal before applying for a labor certification, the advertisement must describe the job in terms that are “specific enough to apprise the U.S. workers of the job opportunity for which certification is sought.” 20 C.F.R. § 656.17(f)(3).

The employer in Cosmos applied for a labor certification in June 2011. The CO requested “specific recruitment documentation” from the employer several months later and denied certification in January 2012. Cosmos, dec. at 2. The newspaper and radio advertisements placed by the employer did not comply with DOL regulations, according to the CO, since they only stated the “primary requirement” of a college degree and two years’ experience, while they omitted the “alternate job requirement(s)” of two years’ work experience. Id. at 2-3.

BALCA reversed the CO’s denial of certification. The CO had concluded that the advertisements did not provide enough information to allow U.S. applicants “to make an informed decision as to whether they would qualify for the position and/or apply.” Id. at 3. BALCA noted in its decision that recent BALCA panels have found that job advertisements do not fail to notify U.S. workers of the job opportunity because they “merely omit information.” Id. at 7.

Samuel C. Berger is an employment visa attorney in New York City and Northern New Jersey. Our clients include prospective immigrants who want to move to this area, as well as immigrants who have made a home here already. We also represent businesses and families, helping them petition for a visa for an employee or relative. Contact us online, at (201) 587-1500, or at (212) 380-8117 today to schedule a confidential consultation to see how we can help you.

]]>477Employer’s Failure to Notify Federal Government of H-1B Employee’s Termination Results in Penalty of Nearly $183,000http://www.newjerseyimmigrationlawyer-blog.com/2016/08/employers-failure-notify-federal-government-h-1b-employees-termination-results-penalty-nearly-183000.html
Thu, 11 Aug 2016 16:45:47 +0000http://www.newjerseyimmigrationlawyer-blog.com/?p=470The H-1B “specialty worker” visa program allows individuals who meet certain criteria regarding education and job skills to come to the U.S. on a temporary basis to work in a qualifying job. The U.S. Department of Labor (DOL) is responsible for administering parts of the H-1B program. The DOL’s Wage and Hour Division (WHD) enforces […]

]]>The H-1B “specialty worker” visa program allows individuals who meet certain criteria regarding education and job skills to come to the U.S. on a temporary basis to work in a qualifying job. The U.S. Department of Labor (DOL) is responsible for administering parts of the H-1B program. The DOL’s Wage and Hour Division (WHD) enforces regulations regarding the conditions of employment for H-1B workers. In July 2016, the Office of Administrative Law Judges (OALJ), also part of the DOL, affirmed an order from the WHD finding that an employer violated DOL regulations by failing to notify the Department of Homeland Security (DHS) that it had terminated an H-1B employee. Adm’r v. ME Global, Inc., No. 2013-LCA-00039, dec. and order (OALJ, Jul. 29, 2016). The OALJ ordered the employer to pay almost $183,000 in back wages.

In order to obtain an H-1B visa for an employee, an employer must get approval from both the DOL and DHS. Obtaining the DOL’s approval requires submission of a labor condition application (LCA). Among multiple other requirements, this document must state that the employer will pay the H-1B worker a fair wage and provide fair working conditions. 8 U.S.C. § 1182(n)(1). An employer is required to pay wages to an H-1B worker for as long as they are working and during any period of time that they are not working “due to a decision by the employer.” 20 C.F.R. § 655.731(c)(7)(i).

If an H-1B employee becomes “nonproductive” because of “conditions unrelated to employment” that the employee requests, because the employee is unable to work due to accident or illness, or after “a bona fide termination of the employment relationship,” the employer is not required to pay wages. Id. at § 655.731(c)(7)(ii). The issue presented to the OALJ in ME Global was whether a “bona fide termination” had occurred.

The respondent employer in ME Global hired the H-1B employee, a citizen of Canada, in January 2007 under a TN visa. It obtained an H-1B visa for the employee in 2008, which was valid until September 2011. Two months later, the employer fired him for “unsafe conduct.” ME Global at 4 n. 6. It paid him wages through the end of November 2008 but did not notify DHS of the termination. The employee filed for unemployment benefits that December.

The WHD ultimately found the employer liable for four regulatory violations, including failure to pay wages under 20 C.F.R. § 655.731. The employer argued to the OALJ that the employee’s firing in November 2008 was a “bona fide termination.” It cited a 2004 decision from the DOL’s Administrative Review Board, Adm’r v. Ken Technologies, No. 03-140 dec. and order (ARB, Sep. 30, 2004), which held that a bona fide notification does not necessarily require an employer to notify DHS.

The OALJ rejected this argument, citing a subsequent decision that effectively overturned Ken Technologies. Adm’r v. Univ. of Maine, Nos. 10-090, 10-093, dec. and order (ARB, Dec. 20, 2011). This decision held that the termination of an H-1B worker is not bona fide unless the employer notifies the employee and DHS. The OALJ affirmed the WHD’s order, which included $182,943.65 in back wages.

Immigration lawyer Samuel C. Berger represents employers in the New York City and Northern New Jersey areas that want to petition for an employment-based immigrant visa or nonimmigrant visa for a foreign worker. To schedule a confidential consultation to see how our experienced and skilled team can help you, contact us today online, at (201) 587-1500, or at (212) 380-8117.

]]>470Proposed Bill Would Eliminate or Increase Per-Country Numerical Limitations for Immigrant Visashttp://www.newjerseyimmigrationlawyer-blog.com/2016/07/proposed-bill-eliminate-increase-per-country-numerical-limitations-immigrant-visas.html
Thu, 28 Jul 2016 16:23:14 +0000http://www.newjerseyimmigrationlawyer-blog.com/?p=460Federal immigration law allows U.S. employers to petition for an immigrant visa for a current or prospective employee, and citizens or lawful permanent residents may do so for a family member. The length of time it takes for the government to approve an immigrant visa petition mainly depends on two factors: the type of visa sought […]

]]>Federal immigration law allows U.S. employers to petition for an immigrant visa for a current or prospective employee, and citizens or lawful permanent residents may do so for a family member. The length of time it takes for the government to approve an immigrant visa petition mainly depends on two factors: the type of visa sought and the prospective immigrant’s country of origin. Most family- and employment-based visas are subject to annual numerical limitations. Federal law also imposes an annual cap on the number of numerically limited visas available to citizens of any one country. A bill currently pending in the U.S. Congress, H.R. 213, or the Fairness for High-Skilled Immigrants Act of 2015, would eliminate or increase the limits placed on each country. The bill likely has little to no chance of passing during the current Congressional session, but it offers a useful look at this particular system of numerical caps.

Some prospective immigrants are not subject to any numerical limitation, such as “immediate relatives” of U.S. citizens. 8 U.S.C. § 1151(b). All other prospective immigrants are subject to annual caps of up to 480,000 family-based and 140,000 employment-based immigrants. Id. at §§ 1151(c), (d). These immigrants are assigned to employment- and family-based immigrant visa categories, based on either the type of job involved or the petitioner’s own status and the immigrant’s relationship to the petitioner. 8 U.S.C. § 1153. In addition to these annual caps, the total number of visas given to citizens or nationals of any one country in a fiscal year cannot exceed seven percent of the total number of authorized visas. 8 U.S.C. § 1152(a)(2). For dependencies of a foreign country, the limit is two percent. Id.

This per-country numerical limit largely affects nationals of some countries more than others. The monthly Visa Bulletin issued by the U.S. Department of State, which indicates how long beneficiaries of each type of immigrant visas petition may expect to wait, illustrates the disparate impact on countries with a high volume of petitions. The Visa Bulletin shows the priority dates for each immigrant visa category that are currently being processed by the government. A petition’s “priority date” is roughly equivalent to its filing date. The Visa Bulletin further distinguishes between petitions received from China, India, Mexico, the Philippines, and all other countries. According to the August 2016 Visa Bulletin, the current priority date for the “F1” family visa category for most countries is May 22, 2009, a waiting period of just over seven years. For the Philippines, however, the priority date is March 22, 2005. For Mexico, it is March 8, 1995.

H.R. 213 would eliminate the per-country numerical limit for all employment-based immigrant visas and increase the per-country cap on family-based immigrant visas to 15 percent of the total number of authorized visas per fiscal year. In addition to amending the Immigration and Nationality Act, the bill would amend the Chinese Student Protection Act of 1992, Pub. L. 102-404, 106 Stat. 1969 (Oct. 9, 1992), to offset the specific number of visas set aside for that country.

Family immigation attorney Samuel C. Berger practices in the New York City and Northern New Jersey areas, representing individuals who intend to immigrate here, immigrants who have settled here already, and employers and families petitioning for an immigrant. Contact us online, at (201) 587-1500, or at (212) 380-8117 today to schedule a confidential consultation with a knowledgeable and skilled immigrants’ rights advocate.

]]>460Immigrant Visa Procedures Could be Revised by Bills Currently Pending in Congresshttp://www.newjerseyimmigrationlawyer-blog.com/2016/07/immigrant-visa-procedures-revised-bills-currently-pending-congress.html
Thu, 14 Jul 2016 16:57:21 +0000http://www.newjerseyimmigrationlawyer-blog.com/?p=453The process of applying for a visa to come to the United States is lengthy and complex, even at its best. Two bills currently pending in the U.S. Congress would modify various aspects of the visa application process, and they could possibly complicate the process even further for some prospective immigrants. H.R. 5203, the Visa […]

]]>The process of applying for a visa to come to the United States is lengthy and complex, even at its best. Two bills currently pending in the U.S. Congress would modify various aspects of the visa application process, and they could possibly complicate the process even further for some prospective immigrants. H.R. 5203, the Visa Integrity and Security Act (VISA) of 2016, would affect how petitions are submitted, the extent of Department of Homeland Security (DHS) background checks, and the burden of proof to establish visa eligibility. H.R. 5253, the Strong Visa Integrity Secures America Act (SVISAA), would modify procedures for vetting visa applicants and for sharing information within DHS and between DHS and the Department of State (DOS).

U.S. immigration law provides for two broad categories of visas. An immigrant visa allows a person to come to the U.S. with the intention of remaining permanently, usually after qualifying through a family member or an employer. Someone who comes to the U.S. on an immigrant visa often applies to adjust their status to lawful permanent residence, also known as a “green card.” Once they have been in the U.S. long enough, they might be able to become a naturalized U.S. citizen. By contrast, a nonimmigrant visa allows a person to come to the U.S. temporarily for a specific purpose. A B-1 tourist visa, for example, allows a person to visit the U.S. but not to work, while an H-1B visa allows a person to hold a job in the U.S. while the visa remains valid. Nonimmigrant visa holders who remain in the U.S. after their visa expires are said to be “overstaying” their visa.

A person petitioning for a visa typically files the petition with U.S. Citizenship and Immigration Services (USCIS), which is part of DHS. A prospective immigrant located outside the U.S., however, has to go through a U.S. consulate in the country where they are located. The U.S. consulates are part of DOS.

VISA would amend the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq., to modify the petition process for both immigrant and nonimmigrant visas:

– It would require a signature on any petition or application filed with either DHS or DOS. For immigrant visa petitions, a prospective immigrant must sign the petition in the presence of a consular officer.
– Background checks on the petitioner and all of the beneficiaries would be required for all visa petitions, including reviews of social media activity. Petitions based on biological relationships would require DNA testing. An additional “security advisory opinion” would be required for nationals of Iran, Iraq, Libya, Somalia, Syria, Sudan, Yemen, and any other country designated by DOS.
– The burden of proof to establish visa eligibility would change from “the satisfaction of the consular officer” to “clear and convincing evidence.” See8 U.S.C. § 1361.

SVISAA would amend the Homeland Security Act, 6 U.S.C. § 101 et seq., in ways that mostly affect behind-the-scenes procedures. For example, DHS would be required to make an annual report to Congress on the estimated number of visa overstays. Immigration and Customs Enforcement (ICE), part of DHS, would be required to provide information about student visa holders from the Student and Exchange Visitor Information System (SEVIS) to U.S. Customs and Border Protection (CBP), another DHS agency.

Employment visa attorney Samuel C. Berger practices in New York City and Northern New Jersey, representing people who want to immigrate to this region or who have already made homes here, as well as employers and families petitioning on behalf of a prospective immigrant. To schedule a confidential consultation with an experienced immigrants’ rights advocate, contact us today online, at (201) 587-1500, or at (212) 380-8117.